Selling or Buying Your House during or after Divorce

Selling a home at any time requires a considerable amount of due diligence if you want the process to be completed without issue. However, buying or selling a home after a divorce can be even more complicated unless you know what it takes to navigate this process. The following is an in-depth guide on everything you should know about buying and selling a home following your divorce, including dos and don'ts, plus our suggestions on best practices.

Who gets the house after a divorce?

When you seek a divorce, you can either come to an agreement with your spouse about how to divide assets like your house and other shared property or can take your divorce case before a judge and let them decide. In the majority of states, assets are divided equitably between both spouses. However, this doesn't mean that assets are equal. If children are involved, the judge may determine that the house should remain with the spouse who is taking care of the children for the majority of the time.

How do you split the value? Try our Home Equity Buyout Calculator.

There are times when one spouse will want to keep the house while the other wants to sell. In this situation, the spouse who wants to keep the house may be required to pay 50% of the total equity in the home to the other spouse. It's common for both spouses to make the decision to sell the home and split the assets evenly.

What are your options if you decide to sell after divorce?

If you want to sell your home after a divorce, you will need to come to an agreement with your ex-spouse to do so. How the home is sold largely depends on how assets were divided during divorce proceedings. In the event that you come to an agreement with your ex-spouse to get rid of the home, you should be able to obtain 50% of the profits once the home is listed on the market and sold.

What if you sell your property while separated, but before divorce is finalized?

If you're intending to get a divorce but are still in the pre-leaving or separation period, you may be trying to figure out what to do with your home. Maybe your home is tied to painful memories that you're constantly being reminded of and you'd rather part ways. Or perhaps you need to sell for financial reasons.

Whatever the reason for wanting to, it's usually possible to sell your home during a separation; however, you and your spouse will have to come to an agreement to sell the home. One of you cannot do so alone. You can agree on the terms of the sale of your property in your separation agreement.

This is a type of private contract that's made between spouses who are separated but not yet divorced. In most cases, separation agreements become part of the final divorce decree and will include details about child support and alimony. For this agreement to be official, both spouses must sign the document. It is likely that the assets from the sale of your home will be split evenly.

What do you do if the court orders the sale of your house during your divorce?

If the court has ordered the sale of your home during a divorce, the first thing you should do is contact a real estate agent to get started with listing your property. However, you may be able to come to an agreement with your spouse to delay placing the home on the market for a few weeks until you've had time to find a new place to live. Once a listing has been made, all you need to do is wait for offers to start coming in.

What happens when one partner refuses to sell after divorce?

Unless the judge who presides over your divorce states that your partner can continue living in your home for a specific period of time, it's likely that the judge will order that your home needs to be sold. The divorce decree will state which spouse is responsible for selling the property.

Keep in mind that a divorce decree is a legal court order, which means that both parties must comply with it. If your partner is responsible for selling your home in accordance with the divorce decree, they will need to place it on the market as soon as possible. However, your partner may still refuse to sell even though the court order demands it.

If the terms of your divorce decree are ever violated, you can file a motion for contempt of court. The judge can then encourage your ex-spouse to comply by issuing fines or even jail time. There's also a good chance that the judge will modify the court order to give you the responsibility of selling your marital home. Regardless of which spouse is responsible for selling the home, the profits from the sale almost always need to be divided evenly.

You sold your house, now what about taxes?

The sale of your home is subject to a capital gains tax. However, exemptions are available that can limit the amount of taxes you pay. If you are filing an individual tax return, your exemption is $250,000, which means that you won't need to pay taxes on up to $250,000 of your earnings from the sale of your home. Let's say that your earn $100,000 from the sale of your home. Because of the exemption, this money won't be taxed. In the event that you earn more than $250,000, the profits above $250,000 will be taxed at anywhere from 15% to 28%.

Buying a new house

Can I buy a new property during my divorce?

If you are currently in the midst of divorce proceedings and are interested in buying a home, it's possible to do so while the proceedings are ongoing. However, it's important to understand that you and your spouse will need to cooperate if you want to buy a home. The reason for this requirement is that most items or assets that are purchased during a marriage are considered to be marital assets.

Most title companies need the other spouse who isn't buying a home to first sign a quitclaim deed, which officially disavows the interest the spouse has in the home. Once this deed has been signed and filed, you should be able to purchase a home without running into any problems.

Buying a new home after your divorce is finalized

Once your divorce is finalized, you can feel free to purchase a home without needing to worry about having the purchase signed off by your spouse. It's important that your financials are in order before you attempt to apply for a mortgage. While a loan may be granted, you typically need to have great credit while also providing the lender with a sizable down payment.

If your home was sold during divorce proceedings, you may have enough funds available to provide the lender with a large down payment. Keep in mind that a down payment of 20% or higher will allow you to avoid the private mortgage insurance requirement. Make sure that you obtain a pre-approval letter before searching for homes, which will allow you to know how much you can afford.

If you want to know more about buying or selling a home during or after your divorce, call us today to learn more about your options. We can answer any questions you might have about the divorce process and how real estate factors into it.


Divorce Specialists
After spending years in toxic and broken family law courts, and seeing that no one wins when “lawyer up,” we knew there was an opportunity to do and be better. We created Hello Divorce to the divorce process easier, affordable, and completely online. Our guiding principles are to make sure both spouses feel heard, supported, and set up for success as they move into their next chapter in life.